Union Lawyers Justify Buffalo Operating Engineers Violence

Labor unions in this country for nearly four decades have operated with a grant of near-immunity from the consequences of intimidating employers and non-joining workers or destroying their property. An ongoing federal racketeering and extortion case against upstate New York's International Union of Operating Engineers (IUOE) Local 17 is underscoring how readily union attorneys rationalize their clients' "right" to terrorize. The case has taken on an added significance in light of legislation recently introduced to close this loophole, a product of a misguided Supreme Court ruling. Even more noteworthy, one of the attorneys for the local is a former law partner of Mark Pearce, the latter recently becoming chairman of the National Labor Relations Board (NLRB). It's a small world.

The Lake View, N.Y.-based Operating Engineers Local 17 (Erie County) is a Buffalo-area construction union with a taste for menacing people they don't like, especially if they happen to be nonunion contractors or their employees. It's also a union that for the last few years has had to answer for its behavior. During predawn hours of April 8, 2008, as Union Corruption Update noted at the time, federal and state law enforcement agents arrested a dozen union members, including Local 17 President Mark Kirsch. All defendants pleaded not guilty.

There was good reason for the raid. A 62-page, eight-count federal grand jury indictment the previous year had charged the union with a long pattern of criminal acts - 75 in all - relating to area construction projects. In one instance, a union member stabbed a local businessman in the neck and slashed the tires on his motor vehicle because he wouldn't sign a collective bargaining agreement; the defendant, Michael Caggiano, pleaded guilty to misdemeanor assault and received a mere four-month jail sentence. On another occasion, a union picketer allegedly yelled to the representative of a developer that he was going to sexually assault his wife, naming the street on which the developer lived. In yet another case, a union member threw hot coffee on nonunion workers. Union members also allegedly caused over $1 million of damage to machinery, employing such methods as pouring sand into gas tanks, grinding compound into oil systems, destroying tires, and cutting fuel lines.

Reprehensible as such acts are, certain Buffalo-area labor lawyers have no problem rationalizing them. "It's pretty telling that in this country, the employer can slash pay by 50 percent, cut pension unilaterally or send thousands of jobs over to China and that's all legal," said Local 17 attorney Richard Furlong immediately following the arrests. "But if there's a union picket line and somebody gets a flat tire or is cursed out, all of a sudden, it's a federal crime punishable by decades in jail." When Kirsch and other union members faced a bail hearing in Buffalo federal court, defense attorney Rodney Personius gushed over the sight of dozens of family members taking up more than three rows of seats: "I've never seen such tremendous family support." Such comments, each in their own way preposterous and evasive, serve as a green light for labor violence - in Buffalo and elsewhere. Ultimately, it is a misguided court decision that set this in motion.

Back in 1973, in United States v. Enmons, the High Court held by a 5-4 margin that a union could not be held in violation of the Hobbs Act, a 1946 federal law intended to punish acts of robbery or extortion related to interstate commerce, if its members had pursued "legitimate union objectives." In other words, so long as a union's ends are justifiable, its means could be criminal. The case originated during a strike in Louisiana in which certain members of an International Brotherhood of Electrical Workers (IBEW) local sabotaged utility company property. The court reported that IBEW members engaged in the following acts: "firing high-powered rifles at three company transformers, draining the oil from a company transformer, and blowing up a transformer substation owned by the company."

All of this looks pretty illegal. Yet the Court said it wasn't - at least as it pertained to the Hobbs Act, which Congress enacted specifically to prevent unions from circumventing existing federal anti-racketeering statutes. Because the crimes took place during a strike and were intended to achieve a "legitimate" objective (in this case, higher wages), the Court reasoned, union leaders could not be prosecuted for extortion. The pretext for this bizarre conclusion lay in a single word of the Act's definition of extortion: "the obtaining of property...by wrongful (italics mine) use of actual or threatened force, violence or fear." The word "wrongful" here presupposes the existence of "rightful" uses of intimidation. This gave union attorneys, and Supreme Court members sympathetic to them, their opening to justify a union rampage. Since then, at least 15 states enacted laws that effectively created the same union loophole. Granted, union violence existed long before 1973. And it has been successfully prosecuted many times since. The key point here is that prosecution would be a lot easier, and more effective, if the Act applied to unions in the way it does to employers. The knowledge of insulation from the law has emboldened union officials to break it.

IUOE Local 17 is hoping things stay this way. The union's attorney, Catherine Creighton, recently argued that her client's actions pale before those committed by the defendants in Enmons. "Their (the defendants') actions were more extreme that what is alleged in the Local 17 case," she said. Such a statement presumes that shooting at a power substation is more violent than stabbing someone in the neck. And since the defendants' behavior in Enmons didn't qualify as extortion, the implication for this case is clear: Local 17 officers and members didn't break the law.

Interestingly, Creighton is the lead partner at Creighton, Johnsen & Giroux, which is the Buffalo law firm where current National Labor Relations Board Chairman Mark Gaston Pearce practiced before becoming a board member last year; back then, the firm was known as Creighton, Pearce, Johnsen & Giroux. Pearce, like the more controversial Craig Becker, joined the NLRB in April 2010 by way of presidential recess appointment. He became chairman of the normally five-member (now down to three) board this August 28, replacing departing chairwoman Wilma Liebman, also a Democrat. The Operating Engineers union acknowledged his help in its newsletter at the time of his initial appointment: "Pearce has worked in a Buffalo, New York law firm representing unions for a number of years. Included among his firm's clients are IUOE Local 17 (Buffalo, NY) and 463 (Niagara Falls, NY)." Pearce himself, in a July 2009 confirmation hearing before the Senate, acknowledged the local was one of his clients. "I did represent Local 17 of the International Union of Operating Engineers in a representation proceeding before the NLRB," he stated. "Subsequent to my representation, I believe officials of Local 17 were indicted for matters unrelated to my representation."

None of this is to suggest, of course, that Pearce has been involved in lawbreaking. And even the most violent unions are entitled to legal representation and a presumption of innocence. Yet it says something about the Obama administration that it would nominate someone to serve on the NLRB, and then chair it, with close ties to an outfit like IUOE Local 17. Senate Republicans were right to threaten a filibuster over his nomination, which is what prompted the recess appointment. Pearce in June 2010 would receive an appointment extension by the full Senate to August 27, 2013.

Thinking long term, the Senate should take up the Employee Rights Act (S. 1507), introduced this August by Sen. Orrin Hatch, R-Utah. One of the bill's provisions would eliminate the Hobbs Act loophole. Proposals of this sort have been kicking around Congress for more than a dozen years, but with insignificant support. The terror campaign by Operating Engineers Local 17 officers and members should be a signal to lawmakers to hold some overdue hearings.